Avoiding Anti-Discrimination Provisions in Recruiting, Hiring and the Form I-9 Process

State Employment Verification Laws

Your Company’s I-9 Program

IndependentContractors

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Conducting an Internal Audit

I-9 Retention

Employers must retain completed Forms I-9 for all employees for 3 years after the date they hire an employee or 1 year after the date employment is terminated, whichever is later. For example, if an employee retires from your company after 15 years, you will need to store, or retain, his/her I-9 Form for a total of 16 years.

The employers I-9 Forms can be retained in paper, microfilm, microfiche, or electronically.

Retaining Form I-9

To store Forms I-9 electronically, you may use any electronic recordkeeping, attestation, and retention system that complies with DHS standards, which includes most commercially available off-the-shelf computer programs and commercial automated data processing systems.
Paper Retention of Forms I-9
Form I-9 can be signed and stored in paper format. When copying or printing the paper Form I-9, you may photocopy the two-sided form by making either double-sided or single-sided copies. You may retain completed paper forms onsite, or at an off-site storage facility, for the required retention period, as long as you are able to present the Forms I-9 within 3 days of an inspection request from DHS, OSC, or U.S. Department of Labor (DOL) officers.

Retention of Forms I-9 Using Microfilm and Microfiche
You may store Forms I-9 on microfilm or microfiche. To do so you must follow DHS compliance standards.

Electronic Forms I-9
USCIS provides a Portable Document Format fillable printable Form I-9 from its Web site, www.uscis.gov. Form I-9 can be electronically generated and retained, provided subject to DHS standards, including guidelines for storing electronic I-9s.
Remember, Forms I-9 must be stored for 3 years after the date you hire an employee, or 1 year after the date you or the employee terminates employment, whichever is later, which can result in a long retention period.
Retaining Copies of Form I-9 Documentation
You may choose to copy or scan documents presented by an employee, which you must retain with his or her Form I-9. Even if you retain copies of documentation, you are still required to fully complete Section 2 of Form I-9. If you choose to retain copies of employee documentation, you must do so for all employees, regardless of national origin or citizenship status, or you may be in violation of anti-discrimination laws.
Retaining Electronic Signature of Forms I-9
You may choose to fill out a paper Form I-9 and scan and upload the signed form to retain it electronically. Once you have securely stored Form I-9 in electronic format, you may destroy the original paper Form I-9. If you complete Forms I-9 electronically using an electronic signature, your system for capturing electronic signatures must follow DHS standards.

System Documentation
For each electronic generation or storage system used, you must maintain and make available upon request complete descriptions of the following per DHS regulations: the storage system, the indexing system, the processes that allow for audit trails.
Security

If you retain Forms I-9 electronically, you must implement a DHS compliant records security program.

If an employer’s action or inaction results in the alteration, loss, or erasure of electronic records, and the employer knew, or reasonably should have known, that the action or inaction could have that effect, the employer has committed a violation of I-9 retention laws.

Remote Hires
It is not unusual for a U.S. employer to hire a new employee who doesn’t physically come to that employer’s offices to complete paperwork. In such cases, employers may designate agents to carry out their I-9 responsibilities. Agents may include notaries public, accountant, attorneys, personnel officers, supervisors, etc. An employer should choose an agent cautiously, since it is responsible for the actions of that agent.

Employers should not carry out I-9 responsibilities by means of documents faxed by a new employee or through identifying numbers appearing on acceptable documents. The employer must review original documents. Likewise, do not mail Forms I-9 to a new employee to complete Section 2 himself or herself.

Guidelines for Using Third Party Service ProvidersSome business entities contract with professional employer organizations (PEOs) to handle the personnel and benefits aspects of the business. This may include completion and retention of Forms I-9. Where the business entity and the PEO are “co-employers,” one Form I-9 should be completed between the co-employers for each employee who was simultaneously hired by the co-employers. A business entity and PEO will be deemed a “co-employer” if, among other things, an employer/employee relationship is said to exist between the business entity and PEO on the one hand, and the individual on the other, even though the employee is only performing one set of services for both co-employers. Therefore, the authority to hire or terminate employment would have to be in the hands of both the business entity and the PEO. Since both entities are employing the individual, however, both entities remain equally responsible for meeting the Form I-9 requirements and equally liable for any failures to meet those requirements. Accordingly, the employer is fully responsible for errors, omissions, and deficiencies in the PEO’s processing.

Employers should not carry out I-9 responsibilities by means of documents faxed by a new employee or through identifying numbers appearing on acceptable documents. The employer must review original documents. Likewise, Forms I-9 should not be mailed to a new employee to complete Section 2 himself or herself.

A sample form for employer remote hire verification is included in the Appendix.

Inspection
DHS, OSC, and DOL give employers 3 days’ notice prior to inspecting retained Forms I-9. The employer must make Forms I-9 available upon request at the location where DHS, OSC, or DOL requests to see them. If you store Forms I-9 at an off-site location inform the inspecting officer of the location where you store them and make arrangements for the inspection. The inspecting officers can perform an inspection at an office of an authorized agency of the United States if previous arrangements are made. Recruiters or referrers for a fee who designate an employer to complete employment verification procedures may present photocopies or printed electronic images of Forms I-9 at an inspection.

If you refuse or delay an inspection you are in violation of DHS retention requirements. At the time of an inspection, you must:
1. Retrieve and reproduce only the Forms I-9 electronically retained in the electronic storage system and supporting documentation specifically requested by the inspecting officer. Supporting documentation includes associated audit trails that show who has accessed the system and the actions performed within or on the system during a given period of time.
2. Provide the inspecting officer with appropriate hardware and software, personnel, and documentation necessary to locate, retrieve, read, and reproduce any electronically stored Forms I-9, any supporting documents, and their associated audit trails, reports, and other data used to maintain the authenticity, integrity, and reliability of the records.
3. Provide the inspecting officer, if requested, any reasonably available or obtainable electronic summary file(s), such as spreadsheets, containing all of the information fields on all of the electronically stored Forms I-9.

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